PROPORTIONATE LIABILITY.

SEC. 201. PROPORTIONATE LIABILITY. (a) Amendment to Securities and Exchange Act of 1934.—Section 2 ID of the Securities Exchange Act of 1934 (as added by this Act) is amended by adding at the end the following new subsection: “(g) Proportionate Liability.— “(1) Applicability.—Nothing in this subsection shall be construed to create, affect, or in any manner modify, the standard for liability associated with any action arising under the securities laws. “(2) Liability for damages.— “(A) Joint and several liability.—Any covered person against whom a final judgment is entered in a private action shall be liable for damages jointly and severally only if the trier of fact specifically determines that such covered person knowingly committed a violation of the securities laws. “(B) Proportionate liability.— “(i) In general.—Except as provided in paragraph (1), a covered person against whom a final judgment 109 STAT. 759 is entered in a private action shall be liable solely for the portion of the judgment that corresponds to the percentage of responsibility of that covered person, as determined under paragraph (3). “(ii) Recovery by and costs of covered person.—In any case in which a contractual relationship permits, a covered person that prevails in any private action may recover the attorney’s fees and costs of that covered person in connection with the action. “(3) Determination of responsibility.— “(A) In general.—In any private action, the court shall instruct the jury to answer special interrogatories, or if there is no jury, shall make findings, with respect to each covered person and each of the other persons claimed by any of the parties to have caused or contributed to the loss incurred by the plaintiff, including persons who have entered into settlements with the plaintiff or plaintiffs, concerning— “(i) whether such person violated the securities laws; “(ii) the percentage of responsibility of such person, measured as a percentage of the total fault of all persons who caused or contributed to the loss incurred by the plaintiff; and “(iii) whether such person knowingly committed a violation of the securities laws. “(B) Contents of special interrogatories or findings.—The responses to interrogatories, or findings, as appropriate, under subparagraph (A) shall specify the total amount of damages that the plaintiff is entitled to recover and the percentage of responsibility of each covered person found to have caused or contributed to the loss incurred by the plaintiff or plaintiffs. “(C) Factors for consideration.—In determining the percentage of responsibility under this paragraph, the trier of fact shall consider— “(i) the nature of the conduct of each covered person found to have caused or contributed to the loss incurred by the plaintiff or plaintiffs; and “(ii) the nature and extent of the causal relationship between the conduct of each such person and the damages incurred by the plaintiff or plaintiffs. “(4) Uncollectible share.— “(A) In general.—Notwithstanding paragraph (2)(B), upon motion made not later than 6 months after a final judgment is entered in any private action, the court determines that all or part of the share of the judgment of the covered person is not collectible against that covered person, and is also not collectible against a covered person described in paragraph (2)(A), each covered person described in paragraph (2)(B) shall be liable for the uncollectible share as follows: “(i) Percentage of net worth.—Each covered person shall be jointly and severally liable for the uncollectible share if the plaintiff establishes that— “(I) the plaintiff is an individual whose recoverable damages under the final judgment are 109 STAT. 760 equal to more than 10 percent of the net worth of the plaintiff; and “(II) the net worth of the plaintiff is equal to less than $200,000. “(ii) Other plaintiffs.—With respect to any plaintiff not described in subclauses (I) and (II) of clause (i), each covered person shall be liable for the uncollectible share in proportion to the percentage of responsibility of that covered person, except that the total liability of a covered person under this clause may not exceed 50 percent of the proportionate share of that covered person, as determined under paragraph (3)(B). “(iii) Net worth.—For purposes of this subparagraph, net worth shall be determined as of the date immediately preceding the date of the purchase or sale (as applicable) by the plaintiff of the security that is the subject of the action, and shall be equal to the fair market value of assets, minus liabilities, including the net value of the investments of the plaintiff in real and personal property (including personal residences). “(B) Overall limit.—In no case shall the total payments required pursuant to subparagraph (A) exceed the amount of the uncollectible share. “(C) Covered persons subject to contribution.—A covered person against whom judgment is not collectible shall be subject to contribution and to any continuing liability to the plaintiff on the judgment. “(5) Right of contribution.—To the extent that a covered person is required to make an additional pa5mnent pursuant to paragraph (4), that covered person may recover contribution— “(A) from the covered person originally liable to make the payment; “(B) from any covered person liable jointly and severally pursuant to paragraph (2)(A); “(C) from any covered person held proportionately liable pursuant to this paragraph who is liable to make the same payment and has paid less than his or her proportionate share of that payment; or “(D) from any other person responsible for the conduct giving rise to the payment that would have been liable to make the same payment. “(6) Nondisclosure to jury.—The standard for allocation of damages under paragraphs (2) and (3) and the procedure for reallocation of uncollectible shares under paragraph (4) shall not be disclosed to members of the jury. “(7) Settlement discharge.— “(A) In general.—A covered person who settles any private action at any time before final verdict or judgment shall be discharged from all claims for contribution brought by other persons. Upon entry of the settlement by the court, the court shall enter a bar order constituting the final discharge of all obligations to the plaintiff of the settling covered person arising out of the action. The order 109 STAT. 761 shall bar all future claims for contribution arising out of the action— “(i) by any person against the settling covered person; and “(ii) by the settling covered person against any person, other than a person whose liability has been extinguished by the settlement of the settling covered person. “(B) Reduction.—If a covered person enters into a settlement with the plaintiff prior to final verdict or judgment, the verdict or judgment shall be reduced by the greater of— “(i) an amount that corresponds to the percentage of responsibility of that covered person; or “(ii) the amount paid to the plaintiff by that covered person. “(8) Contribution.—A covered person who becomes jointly and severally liable for damages in any private action may recover contribution from any other person who, if joined in the original action, would have been liable for the same damages. A claim for contribution shall be determined based on the percentage of responsibility of the claimant and of each person against whom a claim for contribution is made. “(9) Statute of limitations for contribution.—In any private action determining liability, an action for contribution shall be brought not later than 6 months after the entry of a final, nonappealable judgment in the action, except that an action for contribution brought by a covered person who was required to make an additional payment pursuant to paragraph (4) may be brought not later than 6 months after the date on which such payment was made. “(10) Definitions.—For purposes of this subsection— “(A) a covered person ‘knowingly commits a violation of the securities laws’— “(i) with respect to an action that is based on an untrue statement of material fact or omission of a material fact necessary to make the statement not misleading, if— “(I) that covered person makes an untrue statement of a material fact, with actual knowledge that the representation is false, or omits to state a fact necessary in order to make the statement made not misleading, with actual knowledge that, as a result of the omission, one of the material representations of the covered person is false; and “(II) persons are likely to reasonably rely on that misrepresentation or omission; and “(ii) with respect to an action that is based on any conduct that is not described in clause (i), if that covered person engages in that conduct with actual knowledge of the facts and circumstances that make the conduct of that covered person a violation of the securities laws; “(B) reckless conduct by a covered person shall not be construed to constitute a knowing commission of a violation of the securities laws by that covered person; 109 STAT. 762 “(C) the term ‘covered person’ means— “(i) a defendant in any private action arising under this title; or “(ii) a defendant in any private action arising under section 11 of the Securities Act of 1933, who is an outside director of the issuer of the securities that are the subject of the action; and “(D) the term ‘outside director’ shall have the meaning given such term by rule or regulation of the Commission.”. (b) Amendments to the Securities Act of 1933.—Section 11(f) of the Securities Act of 1933 (12 U.S.C. 77k(f)) is amended— (1) by striking “All” and inserting “(1) Except as provided in paragraph (2), all”; and (2) by adding at the end the following new paragraph: “(2)(A) The liability of an outside director under subsection (e) shall be determined in accordance with section 38 of the Securities Exchange Act of 1934. “(B) For purposes of this paragraph, the term ‘outside director’ shall have the meaning given such term by rule or regulation of the Commission.”.